Pulling a sickie just got more dangerous – Lydia Banerjee on Ajaj v Metroline West Ltd.
For
many the idea of ‘pulling a sickie’ is neither shocking nor worthy of
news. A sore head from the night before,
tickets to an exciting event, even a sense of entitlement to some sick days
each year are familiar rationales offered as employees put on their best ‘sick
voice’ and croak their apologies down the phone to their employer.
Employees
beware.
The
EAT in Ajaj v Metroline West Ltd (UKEAT/0185/15/RN) has found “An employee “pulls a sickie” is representing
that he is unable to attend work by reason of sickness. If that person is not sick, that seems to me
to amount to dishonesty and to a fundamental breach of the trust and confidence
that is at the heart of the employer/employee relationship”. In other words ‘pulling a sickie’ is
potential grounds for gross misconduct.
In
the case in question Mr Ajaj claimed to have experienced a fall at work
resulting in a prolonged period of absence.
Over the course of the absence management process the employer grew
suspicious of Mr Ajaj’s claims in relation to the extent of his injuries and
arranged for covert recordings of him to take place. In the recordings Mr Ajaj’s movements and
actions seemed to contradict the account that he was giving to both his employer
and occupational health. Metroline West
Ltd decided that Mr Ajaj’s actions amounted to potential gross misconduct and
commenced disciplinary proceedings.
The
EAT supported Metroline West Ltd’s decision to dismiss Mr Ajaj for gross
misconduct based on the findings of the Tribunal that the company genuinely
believed that Mr Ajaj had (i) obtained or claimed sick pay by fraudulently
representing to be sick when he was not; (ii) misrepresenting his ability to
attend work at review meetings and with the occupational health doctor and
(iii) exaggerated his condition or deliberately attempted to defraud the
company with a claim of injury at work that was exaggerated. The Tribunal also concluded that these
matters related to conduct giving a potentially fair reason for dismissal. From this point the Tribunal moved into error
substituting their view for that of the employer and giving rise to the issues
in the appeal.
The
facts of the case may not be a classic “pulling a sickie” scenario but the view
of Mrs Justice Simler in the EAT will be repeated by many an employer and
employees ought to be wary.
That
said before employers begin dismissing employees whom they suspect have been
“pulling a sickie” it is worth remembering that the legal test for unfair
dismissal has not changed. An employer
will still need to satisfy the requirements of BHS v Burchell [1978]
IRLR 379.
Covert
recording will not be an appropriate step for many businesses but an employer
will need to show that they have reasonable grounds for believing the employee
to be guilty of the misconduct alleged following a reasonable
investigation. Simply thinking someone
didn’t sound ill on the phone is unlikely to be enough. Facebook posts, status updates and ‘check-in’
at various locations may well be part of the picture of where and how an
employee spends their sick day.
Employers will need to make sure that their social media policies are up
to date and allow for this sort of information to be accessed and relied upon.
If a
business has a particular problem with employees taking sick days improperly
then it might be argued that there is a culture of tolerance towards such
conduct. In this situation an employer
may need to consider communicating a new approach to sickness absence prior to
taking action against employees. To do
otherwise risks any dismissal being outwith the band of reasonable responses.
So
the health warning of Ajaj v Metroline West Ltd is for both employers
and employees.
Metroline
West Ltd were represented at the EAT by Adam Solomon of Littleton Chambers.
